Plaintiff cannot compel one of the defendants to appear as his witness.

1. Petitioner filed a suit in O.S.No.137 of 1986 on the file of Principal Subordinate Judge, Tiruchirappalli for partition of suit properties claiming 1/2 share for himself and his sister. The second defendant in the suit has contended that suit items 1 and 2 were given to her on lease by the first defendant. It is also contended by her that the above items are sold by the 1st defendant and 4th defendant to defendants 6 and 7, and they surrendered possession of items 1 and 2 to defendants 6 and 7 for valuable consideration. It is contended by the petitioner that the first respondent herein is suffering from mental disability and third parties exploited the position and defendants 6 and 7 arranged to get Sale deed fraudulently.

2. It is also stated that the husband of the respondent filed I.A.No.169 of 1993 praying for a direction to examine and cross-examine the first respondent herein. On 28.3.1994, the trial court dismissed that petition. Petitioner in this revision is one of the respondent in that Interlocutory application. This revision is filed by the petitioner on the basis of so called observations made in that order. According to the petitioner, the earlier application was dismissed only on the ground that, that is not the stage for examination of witness and the said decision is not a bar for seeking permission to examine the second defendant when the matter came for trial. According to the petitioner, the request of the petitioner was rejected for improper reasons. It is further contended by the learned counsel for the petitioner that the observations by the lower court that the request for examination of second defendant is not maintainable in view of the earlier order in I.A.No.169 of 1993 is not correct and the same require reconsideration. It is also the case of the petitioner that the second defendant is deaf and sums and infirm and she is not a person to look after herself. It is only exploiting her weakness documents have been created and if only her presence is made available in the court, the court will be satisfied that she is incapable of looking after herself and the documents are also invalid. Petitioner wanted the second defendant also to be examined.

3. At the time of admission itself, I asked the learned counsel for the petitioner, how the revision is maintainable when Plaintiff has filed the suit for partition of the plaintiff properties. Contesting respondent is the second defendant. In the suit, no guardian has been appointed for the second defendant. She herself entered appearance through the counsel, and disputed the claim of the plaintiff. She also executed various sale deeds in favour of other defendants.

4. Plaintiff wants the opposite party to be examined as their witness. According to me such a practice have been deprecated by all courts and I asked the learned counsel for the petitioner how can be compel the second defendant to be examined as a witness for the plaintiff. Counsel only submitted that under O.16, Rule 21 of Code of Civil Procedure, all procedure regarding witness is applicable to a party also and therefore a party also could be examined as a witness.

5. I do not think that the submission made by the learned counsel for the petitioner could be accepted. In Pirgonda v. Viswanath Pirgonda v. Viswanath Pirgonda v. Viswanath , A.I.R. 1956 Bom.

251 His Lordship followed the decision of Privy Council reported in Kishori Lal v. Chunni Lal , 31 All. 116at122 wherein it was held thus,

“Mr.Datar has also relied upon Circular No.161 of the Circulars issued by this Court in the Civil Manual. This circular has invited the attention of the subordinate Judges to the observations of the Privy Council in Kishori Lal v. Chunni Lal , I.L.R. 31 All. 116at122 (P.C.) (A) their Lordships of the Privy Council have referred to the practice which sometimes seemed to obtain in some of the Courts in India of calling the partys opponent as a witness and they have observed that this practice is hi